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TransCanada Keystone Pipeline, LP v. Dunavan

ELR Citation: 49 ELR 20147
Nos. No. S-17-1331, (Neb., 08/23/2019)

A state high court upheld the Nebraska Public Service Commission's determination that approval of an alternative route for a proposed oil pipeline was in the public interest. Landowners and Native American tribes argued the Commission lacked jurisdiction under the state's Major Oil Pipeline Siting Act (MOPSA) because it could not consider a route application unless the governor had already considered and denied the application. The court found that the plain text of MOPSA did not require prior gubernatorial denial to initiate application proceedings before the Commission. Plaintiffs also argued the Commission erred in finding that the pipeline developer sustained its burden of proving the alternative route was in the public interest. The court found the Commission properly relied on all record evidence and carefully weighed the relevant factors under MOPSA before determining that the route was in the public interest. Lastly, plaintiffs argued the Commission was not authorized to approve the alternative route because the developer applied for approval only of its preferred route. The court found that while the developer requested approval of the preferred route in its application, it was indisputable that the developer also included the alternative route and that the merits of the route would be considered. It therefore affirmed the Commission's determination.